A predominating theme and school of contemporary political philosophy conceives of persons primitively as unattached individuals in a state of nature, whose subsequent attachments are chosen for autonomously designed ends. Because the individual’s rudimentary condition is one of loose isolation, justly free of heteronomous law or restraint, the so-called natural family must be remedially understood to be non-basic, and indeed a deviation from and impediment to full realization of the individual condition of freedom. Thus relations such as marriage do not naturally beckon and then fulfill the person in his or her unchosen, created purpose; instead marriage and its extending family relations are deemed contractual attachments selected and modified in accord with individual preference based on non-embodied considerations such as will, affection, orientation, and utility. As, on this telling, bodies are mechanisms, with the locus of personal identity present in subjective interiority, the embodied connections of husband and wife, mother and child, father and child are only empirical or mechanical—not meaningful and defining. The family is a spectral and conventional rather than indelible institution; its frame is plastic rather than given and permanent. As a result, family can and should be configured in law in a form that matches its contingency as a social construct, and malleable within a range whose outer limits are subject to continuing cultural negotiation.
The notion of the untethered individual has been long in philosophical development and maturation. But its effects have been resisted and cabined by ancient and persisting family law standards enshrined in common law, statutory, and constitutional loci. Recent decades, however, have seen a strident and often successful effort to align family law with the precepts of this reductionistic anthropology. Thus the family—that natural community and symbol of integration—is being redesigned in law to conform to the precepts of disintegration marking our era. The law is explicitly adopting a mechanistic philosophical vantage as it cooperates with public and prominent biotechnical practices enacting that perspective. These include the pharmaceutical and surgical elimination of children in utero, as well as the manufacturing model of human reproduction by consumer selection.
As to the former, recall Roe v. Wade’s iconic national subversion of the law as the Supreme Court constitutionalized the idea that pregnant women are in non-relation to the fetal presence located within them, and as a result are free of responsibility to it. Whether a relation and responsibility later come into being between them is attributable to the mother’s choice or intent, not because of a preexisting, embodied truth.
The ART/donor-gamete/surrogacy complex exists to decouple child-creation from conjugal relation, to segregate gestation from enduring maternal relationship, and to make blood ties irrelevant to legal child custody.
That is, Roe made official the conversion of motherhood from a natural and public fact to a private choice (or, after Dobbs, a legislative choice), thereby relocating the meaning and relationality of human persons from immutable nature to flexible option. The family (visibly represented in vital respect by mother and child) therefore is not a reality of creation or a radical aspect and expression of human identity, but a construct of selection, thus ultimately subservient to the State agencies that authorize and superintend those individual choices. Roe
and its sequalae, prominently including Obergefell v. Hodges, disqualified in principle the natural family’s public and legal authority—even if, at the moment, certain courts and other legal officers by tradition still often defer to it.
The mechanical reproduction trade is another outgrowth from the diseased taproot from which sprang Roe. The ART/donor-gamete/surrogacy complex exists to decouple child-creation from conjugal relation, to segregate gestation from enduring maternal relationship, and to make blood ties irrelevant to legal child custody. The fragmentation of persons, parts, and relations—and to subject them all to commercial negotiation—is the entrepreneurial essence and audacity of this technological regime performing a redefinition of human nature. In terms of its biotechnocratic and consumerist framework, the child comes into the world not naturally related to anyone, but only transactionally connected to the persons responsible for summoning him through purchase and technique.
The “global baby” (so-called) represents the paradigm and the central case of the industry precisely because it best symbolizes the disintegration of nature and organism accomplished by the ART project. This infant manufacture regimen represents and enables the abolition of relationality in reproduction and custody, and with that it establishes the irrelevance of the location of gametic, gestational, technical, and financial participants. The so-called sperm donor may live in Israel, the “ovum contributor” in Mississippi, the gestator in New Delhi; none speaking the same language, and the only one to lay eyes on the child is the customer in Denver who placed the order and picked it up. Classifying all aspects of reproduction in mere functional terms enables their commercialization, thereby qualifying them for offshoring and otherwise participating in the efficiencies and larger genetic and physiological resources of global markets. Liquid nitrogen freezers, air transportation, and information technology make geographic divides of no production consequence.
And because the ART baby is a project of making, it veritably demands the law apply a consumer paradigm in the later custody determination: The person hiring and directing the technicians to manipulate the biological material should receive the tailored product of his commissioning.
By permitting this technician-engineered form of reproduction, the law’s own description of human meaning is on track to correspond to the mechanical features of this system. Once the law permits the will-based biotechnical making of children from the parts and efforts of disbursed participants, the law already takes for granted and validates that the child (despite the visible realities of genealogy and filial origination), in fact, ab initio, belongs to no one in particular. Moreover, the law thereby abandons the grounding for its historic authority and practice to enforce maternal and paternal duties and claims grounded in the ontology, authority, and moral commands of those embodied offices.
The ART industry’s coup, then, is not merely in the mechanical accomplishment of human reproduction, but in capturing the standards of the law itself. The law’s failure to forbid at the front end the industrializing of reproduction ensures the law’s submission thereafter to the mechanistic premises of that project. For the ART establishment is not just advocating for an unnatural anthropology; it produces vulnerable infants requiring resolution of their custodial placement—which demands the law’s participation. And with that participation, alas, comes the law’s validation of the deeds it inspects and then honors with rules fitted to their character. By pressure of the novel circumstance now before them, judges or other state officers are essentially compelled to stipulate a juridical principle elevating something other than the natural, integrated whole of maternity and paternity as the ground for the law’s determination of an adult’s custodial claim and duty to a child. Whatever the contrived resolution, the adjudicative task has been subordinated to the circumstance of industrial reproduction that the law has permitted, and whose human yields the law now confronts and must situate.
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A sidebar: The question of “Which contributor to the process is the real mother?” is one perplexed and unanswerable. The unified maternal complex of conception, gestation, and childbirth has been partitioned. Is the mother the ovum donor or the gestator? There is no right answer to that question because its premise is unrecognizable: namely, that organic maternity can be mechanically captured and distributed in parts among two or more persons and thereafter emit or reasonably submit to a metric gauging “relative or preponderant motherness” among the fragments.
But as pressing and certain is the answer to this question for certain emotionally invested ovum contributors and gestators, respectively—and later for the child himself—this confounding question is not one the law ultimately finds interesting. For within the terms of the permitted operation of the reproductive industry, both genetic and gestating contributors are deemed non-relational aspects of the technical venture in which they participate. The dividing and functionalizing of female physiological contributions has already defined them down to merely material relevance. Therefore, the law’s predominate solution as referee from its new perch within this system has been that neither of these embodied aspects is the default of a valid custody role. It is instead one’s intent to produce or obtain the child that is decisive.
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Once conjugal procreation with its natural relational tether, duties, and claims is replaced in law and in fact with contract and genetic and mechanical outsourcing, of course the potential for conflicting claims to a child, or renunciation of claim to the child, is introduced. No such conflict is present with natural procreation and its settled participant responsibilities which society and the law throughout millennia acknowledged and responded to by deference and enforcement.
Consider the custody conflicts. For instance, not all women find they can be as emotionally distant and mercenary as they imagined when agreeing or succumbing to act as gestator-for-pay. Some grow to love the child within them and refuse to relinquish it to the purchasers after birth, or otherwise contest the custody rights of those who rented her body. (Recall the infamous Baby M. case.) On the other hand, some purchasers of gametes and/or surrogacy services lose interest in raising the child whose immortal existence they’ve proximately initiated, and so abandon the child. (Incidentally, this sort of abandonment as a statistical occurrence is virtually invited and ensured by the foreign surrogacy markets wherein the consumer caprice endemic to commerce generally is further incited by the vast and humanly momentous geographic remove of customers from the gestating child.)
We can imagine other circumstances of disputed custody—though imagination is not necessary; only a willingness to read the reported court decisions showcasing the variety. I offer a few by way of illustration.
• In California, a man and his wife had purchased both donor sperm and egg for the lab conception of a child, and then paid for implantation of a resulting embryo in a surrogate. The commissioning couple then divorced, and the husband disclaimed paternity of the child carried by the surrogate. The court of appeals ruled his original intent and activating role in the child’s making classified him a father.
• A New York court ruled in a contest between a male couple over the custody of one of the men’s twins that had been conceived by and born to the other man’s sister using the first man’s sperm. Though the first man is their father and the other man their uncle, the Court granted parental custody to the second man—meaning, it seems, that under New York law the brother and sister are parents of the twins.
• In a Tennessee case of a female same-sex divorce, the sperm-donor father of the child born to one of the women intervened in the divorce proceedings to petition a declaration of paternity and a visitation order with his daughter. To no avail, for the Tennessee court (unfazed by the barn-sized equivocation) ruled that the little girl was the “legitimate” child of the female same-sex marriage, having been born “in wedlock,” so the petitioning man had no statutory avenue by which to pursue a paternity claim—such claims being limited to cases of children born out of wedlock.
• A Hawaii woman in her same-sex divorce proceedings disclaimed parental relation to the child of artificial insemination conceived and born to her same-sex partner while the disclaiming woman was stationed on a military installation on the other side of the world. Her ex-partner wanted her to be deemed a co-parent. The state supreme court ruled that the statutory paternity presumption, combined with certain examples of the woman’s text messages, established the unrelated woman as the child’s parent.
• An Arizona woman demanded legal parent status over the ART-conceived child to whom her ex-partner had given birth. The child’s mother resisted that claim. The state supreme court deemed the unrelated woman to be the second mother because of the statutory paternity presumption which the court presumed Obergefell had gender-neutralized.
• An Idaho woman similarly wished to be deemed the parent of her same-sex ex-spouse’s child conceived by ART, over her former partner’s objection. The Idaho Supreme Court ruled that she could have been the second parent, but in this case was not, because she had failed to sign the requisite paperwork and otherwise comply with the rules that the state legislature had enacted to make husbands into legal fathers after agreeing to their wives’ insemination with another man’s sperm. The Court breezily asserted it would be unconstitutional for Idaho statutes to treat maternity and paternity as different.
• In Pavan v. Smith, the United States Supreme Court itself—two years after Obergefell—decided that the Constitution requires Arkansas to use birth certificates for a purpose in conflict with their historic and statutorily defined purpose of identifying the child’s maternal and paternal progenitors. The Court classified the content of Arkansas’s birth records (and impliedly children themselves) as a “benefit” the State gives to adults who are licensed as civilly married.
Not only in court cases such as these, but now also in proliferating statutes and regulations,
the system of disaggregation and renunciation of embodied relationality and meaning is being widely incorporated into the logic of the law’s custody standards and thus its logic on the character of family relationality and its meaning more generally. The content of this legal posture in turn implicates the kind of arguments and claims that can be registered successfully once these precepts through multiple enactments and judicial precedents settle into positions of authority and defining legal rationality.
The legal order that renounces the meaning of generativity and blood ties has removed the foundation for the traditional legal rule whereby a child is received by default into the care of the two people responsible for his existence and identity. Going forward in terms of the intent-based framework, it is not clear how—or that—a mother and father would have a binding claim to the heirs of their body that the law (for that reason) would honor. The more likely point of contestation, though, is in a later dispute with the State over the mother and father’s continuing custody of the child once their exercises of authority conflict with the preferences of state officials. For on the wane is the law’s recognition of the family’s politics-transcending and natural dimension that has authorized its substantial immunity from statist intervention.
In sum, then: The law’s initial evasion—its failure to forbid operation of the ART industry—rather than being a flight from involvement, was a prelude to the law’s full participation in it. This participation ultimately will oblige elimination from law of the standards of natural family that the mechanical model contradicts radically and irreconcilably. The current dissonance among principles old and new will not endure; a resolution is required.
The resolution ought to be in terms of the wisdom of the ages. Law has a fixed responsibility to human nature and the just shape of community order. The law’s interdicts are needed to preserve in integrity the family and the relational identity of persons. And the law’s vital role is not only in excluding from the social order those malevolent intrusions that would introduce chaos into the community and its self-understanding, but in excluding that which threatens the features of the law itself, such as that which would compromise its ability to retain and hold to its venerable precepts, and to a moral and metaphysical coherence.
John Milbank’s critique of liberalism’s “fantastically peculiar and unlikely” anthropology finds a memorable formulation in his “Gift of Ruling,” New Blackfriars 85, no. 996 (March 2004), at 2013.
See David Crawford, “Family and the Identity of the Person,” Communio: International Catholic Review 39 (Spring-Summer 2012), at 174: “the family presents a problem for the modern mind.... It is manifestly a given entailing factors that precede and determine the person. It is therefore a primal threat to the ideal of being most primitively free.”
The Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___(2022), though reversing Roe, left undisturbed its anthropological premises.
 Michael Hanby points out that markets in ova and gestational surrogacy “make possible a novelty unprecedented in human history: the ability to manufacture children for whom the once natural question—‘who is my mother?’—has neither an obvious natural answer, nor even a legal one.”
In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998).
Joseph P. v. Frank G., 2017–08729 (unpublished) (Feb. 14, 2017), aff’d, 161 A.D.3d 1163 (NY 2d Dept. 2018). The rulings in this case were informed by the New York Court of Appeals’ decision in In re Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (N.Y. 2016), in which the New York high court altered the definition of “parent” in state law to encompass an adult unrelated to a child biologically or by adoption, but who agreed with a partner to participate in jointly raising a child to be artificially conceived by the partner.
Of course, that circumstance is only troubling from a perspective informed by human nature; it is non-controversial and (more to the point) meaningless within the technological model whose mechanical premises can neither generate nor permit a significance in kinship. And therein, precisely, lies ART’s utility.
Harrison v. Harrison, No. M2020-01140-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2021).
LC v. MG, 430 P.3d 400 (Haw. 2018).
McLaughlin v. Jones, 401 P.3d 492 (AZ 2017).
Gatsby v. Gatsby, 495 P.3d 996 (ID 2021). Without saying so explicitly, this court, like so many others, appeared to read Obergefell as insinuating a constitutional right to ART-facilitated child-making. See id. at 1002.
Pavan v. Smith, 582 U.S. ___, 137 S.Ct. 2075 (2017). The Supreme Court in its Pavan opinion twice referred to non-parents as “parents.”
Note especially the Uniform Parentage Act of 2017, adopted by six states (California, Connecticut, Maine, Rhode Island, Vermont, Washington), and pending in at least three others, including Hawaii, Massachusetts, and Kansas.